Seven Towns Limited, who owns the rights to the famous Rubik's Cube, filed an application for a Community Trade Mark for "Toys, games, playthings and jigsaw puzzles, three-dimensional puzzles, electronic games, portable handheld electronic games", in Class 28 (of the International Classification of Goods and Services for the Registration of Marks). It has indicated that this involves the registration “of colour per se” as a trade mark and has provided the following information under the heading "colour indication":

1. Red (PMS 200C)

2. Green (PMS 347C)

3. Blue (PMS 293C)

4. Orange (PMS 021C)

5. Yellow (PMS 012C)

6. White (white)

7. Black (Black)

The company also provided the following description: " Six surfaces being geometrically arranged in three pairs of parallel surfaces, with each pair being arranged perpendicularly to the other two pairs, and the whole object being characterised by: (i) any two adjacent surfaces having different colours and (ii) each such surface having a grid structure formed by black borders dividing the surface into nine equal segments".

OHIM - Office for Harmonisation in the Internal Market (Trade Marks and Designs) replaced the indication of " colour per se trade mark " with "figurative mark", deeming that it was actually a figurative mark in colour.

The applicant company contested the assessment of OHIM.

The OHIM examiner maintained his position, repeating the observation that the sign at issue does not represent a combination of colours per se, but rather "a juxtaposition of coloured squares, characterised by a particular size, form and order, and that, on that ground, the mark must be deemed to be a figurative mark and not a colour mark ". He also indicated that "the representation of a colour mark per se must consist of a representation of the colour or colours without contour and that, a colour per se implies that it is not spatially delimited ".

The examiner rejected the trade mark application on the basis of Article 4 of the Regulation on the Community Trade Mark, which provides that : "Community Trade Marks may consist of any signs capable of being represented graphically […] “.

This decision was upheld by the Board of Appeal of OHIM, and Towns filed an appeal before the Tribunal de Première Instance de l'Union Européenne (TPIUE) / European Court of First Instance (ECFI).

The applicant submitted in particular that the Board of Appeal had adopted a misconceived test in the contested decision, wherein it stated that the test was to determine “ whether a reasonably observant person with normal levels of perception and intelligence would, upon consulting the Community trade mark register, be able to understand precisely what the mark consists of, without expending a huge amount of intellectual energy and imagination ”. The applicant argued that “ the criteria with respect to “normal levels of perception and intelligence” or “huge amount of intellectual energy and imagination “ are not legal terms, are without a sufficiently precise meaning and the outcome of their application is unpredictable“.

The applicant added that, ” any person with basic notions of geometry should understand that a surface having a grid structure formed by black borders dividing the surface into nine equal segments is a 3 x 3 square surface, and that three pairs of square surfaces constitute six square surfaces. Moreover, it is clearly stated how the colour black is arranged in relation to the other ‘real’ colours. Thus the description is self-contained, complete and coherent in the sense of being clear, precise and intelligible“.

The Tribunal de Première Instance de l'Union Européenne (TPIUE) / European Court of First Instance (ECFI) deemed, however, that the Board of Appeal had rightly held, that a “ reasonably observant person with normal levels of perception and intelligence would, upon consulting the Community trade mark register, be unable to understand precisely what the mark consists of, without expending a huge amount of intellectual energy and imagination”.

The ECFI thus held that the mode of representation of coloured squares is “ clearly incompatible with the requirements of the regulation concerning colour marks per se in so far as they do not consist of colours designated in the abstract and without contours".

In the light of those factors, the ECFI concluded in dismissing the appeal that the sign that is the object of the application as so defined is not a colour mark per se but a three-dimensional mark, or figurative mark, which corresponds to the external appearance of a cube covered in squares with a particular arrangement of colours.